[2023] KECPT 431 (KLR)

Mathu & 10 others v Commissioner for Cooperative Development and Marketing; Riitho Farmers Co-op Society (Interested Party) (Tribunal Appeal 1 of 2019) [2023] KECPT 431 (KLR) (Civ) (15 June 2023) (Judgment)

Neutral citation: [2023] KECPT 431 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Appeal 1 of 2019

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

June 15, 2023

Between

Wilfred Mahia Mathu & 10 others

Appellant

and

The Commissioner for Cooperative Development and Marketing

Respondent

and

Riitho Farmers Co-op Society

Interested Party

Judgment

1. On February 8, 2022 the Appellants filed an Amended Memorandum of Appeal seeking the following orders;a.The Inquiry alleged conducted by Hesbon M. Kuria and Micheni Kibati be declared null and void.b.Geoffrey Njang’ombe usurped the mandate of the Commissioner in surcharging the Appellants.c.The entire decision by the Commissioner to surcharge the Appellant be quashed and set aside for being based on an Inquiry which never took place.d.The Respondent pays cost herein.

2. In the Appeal, the Appellants argue that the Respondents committed an illegality by surcharging the Appellants when they had no authority to do so. Further, they argue that no Inquiry was carried out.The Respondents have not filed any Response. On March 14, 2022 the Interested Party filed a Replying Affidavit in Response. They claim provisions of the law are expressly clear that the Respondent and all other officers below him legal authority to execute any function that falls under the Cooperative Societies Act. Further, the Respondent through an order dated March 27, 2018, state that they appointed an Inquiry Team that compiled a report that established there was mismanagement of funds by the Appellants. They pray that the Appeal be dismissed with costs.

3. The issues for determination are:

a. Whether the Deputy Commissioner of Cooperative Development one Geoffrey Njangómbe had capacity to sign Surcharge Orders under the Cooperative Societies Act. 4. Section 73(2) of the Cooperative Societies Act is the law that governs surcharges and provides that the Commissioner may make an order requiring the person to repay or restore the money or property to the Cooperative Society. The same was highlighted in Tribunal Appeal Case No. 2 of 2020 Betty Joyce Matiangi versus Wevarsity Sacco Society Ltd. The Commissioner therefore, is an administrative body which carries out its function as mandated by the Cooperative Societies Act.

6. The office of the Deputy Commissioner for Cooperative Development is a creature of statutes in Section 3(2) of the Cooperative Societies Act. They are deployed in the department of cooperatives where they are assigned various duties listed under Section 3(3) of the Cooperative Societies Act. The Cooperative Societies Act Section 3(1) & (2)provides that there shall be a Commissioner for Cooperative Development whose office shall be an office in the Public Service and that there shall be a number of officers, including Deputy Commissioners, as may be necessary to assist the Commissioner in the administration of the provisions of this Act.

7. Similarly, Article 260 of theConstitution of Kenya and Section 2 of the PublicOfficers Ethics Act define who a State Officer and Public Officer is respectively. They both define Public Officer to be a holder of a State Office, who are paid by the Government and perform various duties.

8. Therefore, from the above provisions of law it is clear there is no dispute as to whether Geoffrey Njangómbe is a Public Officer and it defeats any logic to dispute documents signed by the same officer in the course of his legal duties.

b. Whether an inquiry was conducted into the financial affairs of the interested party. 9. It is the Interested Party submission that the Respondent appointed a team of Inquiry Officers under Section 58 of the Cooperative Societies Act. The said Officers were required to examine the Interested Party’s financial activities and compile a report of their finding and recommendations. The Inquiry Report is part of the Appellants list of documents marked page 2 to 98.

Upshot 10. After consideration of the Amended Memorandum of Appeal, the Appellants written submissions and Interested Party’s written submissions, we find the Appeal is without merit and the same is dismissed with no orders as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JUNE, 2023. HON. BEATRICE KIMEMIA, CHAIRPERSON, SIGNED JUNE 15, 2023HON. J. MWATSAMA, DEPUTY CHAIRPERSON, SIGNED JUNE 15, 2023HON. BEATRICE SAWE, MEMBER, SIGNED JUNE 15, 2023HON. FRIDAH LOTUIYA, MEMBER, SIGNED JUNE 15, 2023HON. PHILIP GICHUKI, MEMBER, SIGNED JUNE 15, 2023HON. MICHAEL CHESIKAW, MEMBER, SIGNED JUNE 15, 2023HON. PAUL AOL, MEMBER, SIGNED JUNE 15, 2023Tribunal Clerk JonahNo appearance by partiesJudgment delivered in the absence of partiesHON. J. MWATSAMA, DEPUTY CHAIRPERSON, SIGNED JUNE 15, 2023